2 Va. Dec. 529 | Va. | 1897
delivered the opinion of the court.
This suit was brought to have partition of the land in Tazewell county, Ya., which belonged to Henry Marrs, the grandfather of the complainants. Henry Marrs died intestate about the year 1831, leaving a widow and nine children, one of whom, Rebecca, had married John Brooks in the year 1825. She and her husband left Tazewell county in 1855, and moved to the state of Missouri, where she died in 1872, and her husband in 1889. They also left nine children, one of whom died, leaving-four children. These children and grandchildren, heirs at law of Rebecca Brooks, instituted this suit in 1890.
The original bill and the amended bills together made defendants all persons claiming to own any part of the said tract of land. They interposed as their defense to the bill that the children of Henry Marrs, shortly after his death, assigned dower in the land to his widow, and made a parol partition of the residue
It seems to be well settled that, by the common law, co-par
While it is true that oral partition of lands could at that time be made by co-parceners, yet where it is relied on as a defense to a bill filed by one of the parceners, or his or her heirs, for partition of a certain tract of land, the burden of
James E. Peery admits in his answer that he is in possession of, and claims title to, lot No. 2, but denies that this was the share allotted or assigned to Rebecca Brooks; and the parties claiming to own lot No. 6 deny that they are in possession of any part of the share of Rebecca Brooks in the land left, by her father. Nevertheless, the fact is that the very documentary evidence on which the defendants rely to establish the parol partition shows that either lot No. 2 or No. 6 was the share in the land which was assigned to her, and that her heirs are now entitled to it. They cannot be wholly deprived of the share of their mother in the land, to which their right is not, and cannot be, questioned, because those in possession rely on a parol partition, but do not show the part assigned to her. They cannot be defeated of their right to the land, and turned out of court, simply by being told that the land was divided, but that they must find for themselves, as best they can, the lot which was assigned to their mother. To permit this would be a mockery upon the administration of equity jurisprudence. Lots No. 2 and No. 6 were jointly conveyed by James Marrs and his wife and John Brooks — they being the lots assigned respectively to James Marrs and Rebecca Brooks — to John Crockett. The parties now in possession of the lots claim title to them through Crockett, and under the said conveyance. They are charged with constructive knowledge that one of the lots belongs to the heirs of Rebecca Brooks. The nature of their defense imposes upon them the duty, as we have seen, to
We of are opinion that, before a final determination of the .cause is had, particular inquiry should be made as to which of the said lots was assigned to Rebecca Brooks, and the cause will be remanded to the circuit court, with costs to the heirs of Rebecca Brooks, the appellees in the second appeal, as the parties substantially prevailing, in order that it may cause such inquiry to be made through one of its commissioners.